How do you prove medical negligence?

Question

José Manuel Alburquerque · Accepted Answer

With the complete medical records and a report from a medical expert, normally in the same speciality, comparing what was done with what good practice required and explaining whether that caused the harm. The burden of proof lies with the person making the claim, but judges take into account that the documents and protocols are held by the hospital or clinic. There are also rules that help the patient. The doctor has to prove that the patient was informed of the risks and, if the outcome is disproportionate, has to explain what happened. The evidence The complete medical records, including the reports, the imaging tests, the nursing and anaesthetic records and the signed consent forms. They are the basis of everything and should be requested as soon as possible. If the hospital or clinic will not give them to you, the judge can order them to be handed over before proceedings are brought. The expert report, which is the opinion of a doctor who assesses the treatment and its consequences. Without it, only obvious cases succeed, such as a swab left inside the body or an operation on the wrong side. Your own documents, such as reports from other doctors, photos, messages exchanged with the clinic, quotes and advertising, which carry a lot of weight in dental and cosmetic treatment. Witnesses, for example family members who were present and can say what they were told or how long it took for the patient to be seen. The guidelines of medical societies and the medical literature, which help to establish what was correct at the time. What helps the patient Ease of proof. The claimant has to prove the facts, but the judge takes into account which party could more easily provide each piece of evidence. If the hospital or clinic does not produce the records or the protocols, or there are gaps in the records, this usually counts against it. Informed consent, which is the authorisation the patient gives after the risks have been explained. It is for the doctor, hospital or clinic to prove that you were informed, not for you to prove that you were not. Disproportionate harm. If the outcome is abnormal and cannot be explained by the risks inherent in that type of treatment, the doctor has to explain what happened and show that he or she acted properly. If the doctor does not do so convincingly, the judge may infer that there was negligence. Loss of chance. If it cannot be proved that correct treatment would have avoided the harm, but it can be proved that it offered a real chance of avoiding it, part of the harm is compensated in proportion to that chance. Depending on the route In the public health service, the file includes the report of the department that treated you and, often, that of the medical inspectorate, both of which usually defend the treatment given. They have to be rebutted with your own expert. In civil proceedings, each party submits its own expert's report and the judge can also be asked to appoint one. In criminal proceedings, the report is prepared by the forensic doctor, who is the court's own doctor, at no cost to the patient.